BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.540 of 2019

      Date of Instt. 08.11.2019

      Date of Decision: 05.01.2023

Gaurav Katyal son of Ashok Kumar Katyal, Sakay Overseas, 410, Leather Complex, Kapurthala Road, Jalandhar.

..........Complainant

Versus

1.       M/s Vodafone India, Suman Tower, Plot No.18, Sector-11,     Gandhi Nagar, Gujrat-382011 through its Authorized Officer.

2.       M/s Vodafone India (Formerly Idea Cellular Ltd.) Punjab Circle        Office, C-105, Industrial Area, Phase-7, Mohali, Punjab-1660055         through its Authorized Officer.

3.       M/s Vodafone India, Zonal Office: Old Phagwara Road, Kot   Kalan, Jalandhar Cantt, Jalandhar through its Authorized Officer.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. Jaswant Singh, Adv. Counsel for the Complainant.

                   Sh. K. K. Arora, Adv. Counsel for OPs No.1 to 3.

Order

Dr. HarveenBhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the OPs are Telecommunication Company and are engaged in the business of providing mobile network services. The complainant is also the consumer of the OPs and is using the services of the OPs through mobile phone No.98141-53477 regularly and is paying the bills well in time and till date all the bills are cleared and even advance money is paid vide account No.100020594381 to the OPs. Since the month of May, 2019 the services of the OPs became very poor and it has become very difficult to the complainant as generally there is no proper communication with the other person and sometimes the complainant cannot understand as to what the other person is saying i.e. voice crackening. Not only this, there are very weak signals and call drop problem in all the number and the complainant has to call 4-5times and only thereafter, the complainant was able to connect with the other person. The complainant has informed to the OPs through phone as well as emails many times but neither there was any positive response from the OPs nor resolves the network problem of the mobile phone of the complainant and the complainant was continuously mentally tortured, caused financial loss and mental agony etc. Firstly the complainant in the month of May 2019 informed the OP through phone and thereafter the complainant sent email dated 27.7.2019. Thereafter the complainant sent email on 21.9.2019 and accordingly the OPs sought certain clarifications and the same were given through email on 21.9.2019 but till today neither any positive response received from the OPs nor the problem of the complainant was resolved and amber in this manner the OPs have caused deficiency in service and unfair trade practices despite numerous requests made by the complainant. Due to the above said facts and callous attitude and illegal acts and conduct, deficiency in service and unfair trade practice of OPs and because of very poor network services, the complainant suffered financial loss, apart from it he was mentally tortured and put to mental agony and unnecessarily harassed in the hands of the OPs. The complainant also served a legal notice on 27.09.2019 upon the OPs, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay for sum of Rs.4,50,000/- being the compensation for causing mental tension and harassment to the complainant and Rs.33,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs, who filed written reply and contested the complaint by taking preliminary objections that the present complaint is baseless, frivolous and has been formulated on wrong and misleading facts and is devoid of any merits whatsoever. Each and every allegation made against the OPs shall be deemed to be denied unless and until the same is specifically admitted herein in the present reply. It is further submitted that the Complainant has the least concern for the sanctity and dignity of the judicial process. The Complainant in his endeavour to harass and humiliate the OPs has not only concealed the material facts from this Commission, but has also misrepresented the material facts before this Commission. The Complainants are guilty of Suppressio Veri and Suggestion Falsi have no right of maintaining the present complaint and the present complaint is liable to be dismissed on this very ground. The Complainant has failed to establish any deficiency on the part of the OPs. It is further averred that the present complaint to the extent it is concerned with the OPs is devoid of any merit and therefore, the complaint against the OPs is not maintainable and therefore deserves to be dismissed at this stage itself. It is further averred that the OPs crave for the leave of this Commission to put the true and correct facts, as they stand, before this Commission and the same are set forth in the following paras:-

a)                That the Mobile Connection bearing number 9814110477 belongs to the Corporate Account allocated to a Partnership firm M/s Sakay Overseas through its authorized representative Mr. Ashok Kumar Katyal. The subscriber of the account in question is M/s Sakay Overseas a body E-incorporated under the Partnership Deed having its Registered Office at 410, Leather Complex, Jalandhar City (Punjab) vide the CAF dated 22.07.2013.

b).               The complainant at the first instance has sent an e-mail dated 21.09.2019 to the OP company to complain about the network issue he was facing on his given mobile number. As already admitted by the complainant his grievance was duly addressed by the representatives of the OPs on the same day. It is also submitted hereby that during the said course various mails were shared between the complainant and the opposite party company. The copy of the same has been attached alongwith the complaint.

c).               The answering OP team tried to contact the complainant on 24.09.2019, but the complainant was not contactable. It is submitted hereby that the company needs some kind of troubleshooting before any site visit, however, the same was not done because of the non-availability of the complainant. Thereafter, one e-mail dated 24.09.2019 at 2:05 PM was sent to the complainant in which it was duly informed to the complainant that the company representative tried to contact the complainant thrice on 24.09.2019, but the same was a failed attempt as no alternative contact number was available with the company. It was further requested to visit the nearest My Idea Store alongwith the original proof of identity and company letter head duly signed by the company representative. The complainant has intentionally not disclosed the complete communication trail so as to take advantage of his own errors.

d).               The information shared by the complainant with the OP company was not complete to investigate further, therefore the opposite party has failed to initiate the process further.

                   It is further averred that the present complaint is liable to be dismissed as the complainant himself is at fault for not reverting as suggested by the answering OPs representative to deal with his alleged grievance. It is further averred that the present complaint is liable to be dismissed on this ground that this Commission has got no jurisdiction to entertain and decide the present issue of imposing penalty for weak network signals and call drops. The said question also came up for consideration before the Hon'ble Supreme Court of India in case of “Cellular Operators Association of India Versus Telecom Regulatory Authority of India”, in Civil Appeal No.5017 of 2016 decided on 11.5.2016, wherein the Hon'ble Supreme Court of India had set aside the order of the TRAI, whereby the TRAI has levied penalty charges upon the Cellular Operators and it was held by the Hon'ble Supreme Court of India that the said charges could not be levied by TRAI. Thus, once the Hon’ble Supreme Court has held that even the Regulatory Authority does not have power to impose the penalty for weak signals or call drops than the assumption of jurisdiction of this Hon'ble District Commission on the same cause of action is not sustainable. It is further averred that the present complaint is liable to be dismissed on the ground that the complainant in the present case does not fall within the definition of consumer as defined under Section 2 of the Consumer Protection Act and the complainant is not a consumer of the OP company as alleged in the present complaint. On merits, it is admitted that the OPs are telecommunication company and are engaged in the business of providing mobile network services and it is also admitted to the extent of bills being paid by the subscriber of the number as per the record available with the OPs, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder not filed by the complainant.

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the OPs, very minutely. 

6.                The complainant has alleged that he is the consumer of the OPs and enjoying the services of the OP through mobile No.98141-53477 and is paying the bills regularly. He has proved on record the bills of the mobile phone Ex.C-2 and Ex.C-3. The grudge of the complainant is that the services of the OPs are very poor and there is voice crackening, week signals and call drop problem in all the numbers. Despite the grievance told to the OP by emails and phone, his grievance was never resolved and the problem of network of the mobile phone was never solved. The complainant has proved on record the emails and reply Ex.C-4 to Ex.C-7 and has alleged that there is a deficiency in service and unfair trade practice on the part of the OPs as despite the requests made to them for numerous time, the problem has not been solved by the OPs. Perusal of Ex.C-4 shows that the complainant has alleged that he has tried to port his number from Idea to Airtel, but his request is being cancelled for number of times and he has made emails regarding the poor mobile services of the OP, which is evident from Ex.C-5. Ex.C-6 is the reply, vide which the OP had sought some details from the complainant, so that the problem may be solved. Ex.C-7 is the reply to the clarification sought by the OP, vide Ex.C-6 and giving the detail sought by the OPs, but despite that the issue of the complainant was never resolved.

7.                The contention of the OP is that the present complaint is not maintainable as the complainant is not a consumer as the complainant has filed the present complaint in his own name in individual capacity without any authorization or resolution in his favour on behalf of M/s Sakay Overseas. It has been alleged that the mobile connection bearing No. 98141-53477 belongs to corporate account allocated to a partnership firm M/s Sakay Overseas through its authorized representative Mr. Ashok Kumar Katiyal.

8.                Ex.OP-1 is the customer application which shows that the same has been filed by M/s Sakay Overseas which is a partnership firm and there is no objection certificate on the record filed by the OP to show that this number alongwith other numbers were allowed to be transferred to the sister concern namely M/s Sakay Overseas by Sakay Traders and this number was in the name of Gaurav Katiyal, being a partner of M/s Sakay Overseas. The email sent by the complainant and reply to the emails have not been disputed by the complainant or the OPs. Perusal of the present complaint shows that Gaurav Katiyal has filed the present complaint in his individual capacity, whereas this number was transferred in M/s Sakay Overseas and he has been shown as a partner.

9.                After considering the overall circumstances, the complainant has failed to establish himself as a consumer     and as such, the complaint of the complainant is not maintainable and the same dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

10.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

05.01.2023         Member                          Member           President